People v. Marsh

• Decision Date: 19 October 1982
• Docket Number: Cr. 38687
• Citation: 136 Cal.App.3d 634,186 Cal.Rptr. 528
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Martin Edward MARSH, Defendant and Appellant.

Page 528

186 Cal.Rptr. 528

136 Cal.App.3d 634

The PEOPLE, Plaintiff and Respondent, v. Martin Edward MARSH, Defendant and Appellant.

Cr. 38687.

Court of Appeal, Second District, Division 1, California.

Oct. 19, 1982.

Hearing Granted January 19, 1983.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Tom Stanley, Deputy State Public Defender, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Shunji Asari and Cynthia Sonns Waldman, Deputy Attys. Gen., for plaintiff and respondent.

LILLIE, Associate Justice.

Defendant Marsh appeals from judgment entered on his plea of nolo contendere to kidnaping for ransom (§ 209, Pen.Code) (count I) with bodily harm, eight counts of forcible rape (counts III, IV, V, VIII, IX, X, XII, XIII) and that he acted in concert, three counts of oral copulation (§ 288a, subd. (c)) (counts VI, XIV, XX), two counts of oral copulation (§ 288a, subd. (d)) (counts VII, XXI), sodomy (count XI), two counts of robbery (counts XV, XVI), allegation of use of a deadly weapon (knife) within the meaning of section 12022, subd. (b) in the commission of all of the foregoing crimes, and three counts of assault with a deadly weapon by means of force likely to produce great bodily injury (counts XVII, XVIII, XIX). The pleas were entered pursuant to a plea bargain in return for which the People agreed to and the court did dismiss count II (simple kidnaping [§ 207, Pen.Code] ).

I MOTION TO STRIKE

At probation and sentence defendant moved to strike from count I the allegation of ransom and of bodily harm to reduce the charge of kidnaping under section 209, Penal Code, to simple kidnaping in violation of section 207, Penal Code, in order to render him eligible for commitment to the California Youth Authority. The intent, of course, was to completely destroy the charge of kidnaping for ransom with bodily harm as alleged in count I. The motion was denied and defendant was sentenced on count I to life imprisonment without possibility of parole. Appellant contends the court abused its discretion in denying the motion because (1) striking both allegations would have Trading heavily on his age (16) at the time of commission of the offenses in 1980, the asserted lack of "sophistication" in the crime and "a robbery attempt that went awry and ended with an amateurish $300 ransom," the lack of "substantial physical injuries [to the victim] in addition to the sexual assaults," Billy's "influence" over him "forcing" him to participate and his "appearance" of being under the influence of "speed" and alcohol, the thrust of appellant's argument is that the sentence of life imprisonment without possibility of parole is too harsh. The other side of the coin tells an entirely different story. It is reflected in a plethora of information before the trial court--the transcript of testimony taken at the preliminary hearing, probation report, statement of defendant's parole officer, report of the Newport Medical Group, report of Dr. Donaldson, report of Dr. Nutter, and a study of Juvenile Hall Group Supervisors.

                made him eligible and cleared the way for commitment to the California Youth Authority (a maximum term of four years) and (2) striking the allegation of bodily harm would have permitted him to be sentenced to life imprisonment.  His contention is based on the premise first, that without an order striking the ransom and bodily harm allegations he was and is not eligible for commitment to the Youth Authority and second, that he "clearly demonstrated his amenability to the training and treatment available at Youth Authority" and "established from the undisputed evidence that the interests of justice required a Youth Authority commitment."   The court's power to dismiss (here to strike) under section 1385, Penal Code is limited by the concept that requires the dismissal to be "in furtherance of justice" and, contrary to appellant's assertion, factually he was not amenable to the California Youth Authority treatment and training, and the trial court recognized this in denying the motion.  The real question is did the trial court abuse its discretion in denying the motion to strike to make defendant eligible for training and treatment at the Youth Authority;  the answer is no
                

The transcript of the preliminary hearing establishes the following. After midnight on April 11, 1980, defendant (then age 16, now over 18 years) and Billy (age 19) approached Anne and her companions Michael and Robin as they entered their car near the beach, pulled them out of the car, pointed knives at them and demanded their property; they surrendered their watches and rings but had no money. Threatening them with knives drawn at their throats, defendant and Billy who had returned them to a grassy area near their car, forced Michael and Robin to lie down and questioned them about getting some money, kicking them about the head, body and groin area and poking and stabbing at them with their knives. Billy told defendant to watch them and ordered Anne to remove her clothes; she refused and Billy said "I'm going to kill your friends if you don't"; she complied and he forcibly raped her. Defendant and Billy then led Anne and her two companions to another area near the restrooms, and again Billy raped her while defendant watched the two males and talked to them about getting some money ($300) for Anne's release--"[defendant] was talking about having them meet them the next day for some money. And he was telling [Michael] where to put it and what to put it in and how much." After making the money arrangements with Michael and Robin, defendant said to Billy " 'Well, let me have a turn.' They just kept playing around like, like it was nothing to them," and defendant forcibly raped Anne while Billy watched Michael and Robin; in addition Anne was forced to engage in various acts of oral copulation with Billy, then with defendant; defendant and Billy told Michael and Robin to have $300 the next day and "if you don't show up with the money, you're never going to see her again" reiterating instructions concerning where to leave the money (in a trash can by the Holiday Inn at 11 or 12 o'clock noon that day). Defendant and Billy walked to Michael's car, and when Billy could not find the key they slashed the tires then led Anne away along the beach over a freeway to a grassy field where again she was sexually assaulted by Billy and defendant; Billy, then defendant Was defendant coerced into participating in the crimes by Billy, only three years older? Hardly. The record demonstrates that defendant played a full, complete and meaningful and violent role in all events. While it is true Billy raped the victim first, the second time defendant said to Billy " 'Well, let me have a turn.' " They would not have "just kept playing around like" had defendant been under any coercion by Billy. From then on during the 16-hour period they repeatedly sexually abused the victim taking turns. Defendant discussed the ransom with Michael and Robin on two occasions while Billy was raping the victim and it was defendant who made the arrangements and gave the instructions when and where to leave the $300. It was also defendant who twice the next day left the van to pick up the ransom money but returned without it because he was "scared the cops were around." If the kidnaping was "amateurish" and lacked "sophistication" as claimed by appellant, it nonetheless was a deliberate, vicious, violent and callous crime accompanied by numerous and varied acts of sexual abuse over a period of 16 hours ravaging the 18-year-old female victim.

raped her and while defendant engaged in an act of sexual intercourse Billy committed sodomy on Anne then forced her to engage in additional acts of oral copulation with both. Billy and defendant walked Anne down the railroad tracks, down several streets and up the stairs to the top of some apartments where she was blindfolded and led to a van, they walked about a mile in all; in the van she was ordered to undress and threatened with death if she did not do as she was told; they engaged in further acts of sexual intercourse, "They just sort of took turns"; Billy engaged in another act of oral copulation with her; and they told her she would be killed if her friends did not come up with the money. The next morning about 11:30, defendant left the van to pick up the ransom money but returned "Because he was scared that the cops were around"; defendant left again in the afternoon but returned without the money. At 4:30 p.m. Anne was released to two persons who knew Billy and defendant.

The probation reports reveals a serious criminal record ¹ for a 16-year-old--two burglaries, two escapes, possession of marijuana and auto theft. It also points up various factors. (1) The increasing seriousness of the crimes committed by the minor over a 4-year period. (2) A history of violence indicating defendant is a danger to society, especially when using alcohol and drugs. His conduct has a basic pattern of violence, irresponsibility and anti-authority. Defendant showed such great hostility and was so verbally abusive toward the probation While it is true that Dr. Donaldson, psychiatrist, reported defendant "seems a good candidate for the Youth Authority," defendant's parole officer recommended commitment to California Youth Authority because "they have better programs," the Juvenile Hall Group Supervisors study stated defendant was doing well and the Newport Medical Group recommended he receive a tightly structured treatment program of "relatively long duration," the fact remains that the probation officer who made the most exhaustive and thorough investigation of and report on defendant recommended that he be committed to the Department of Corrections because "To commit the defendant to California Youth Authority for the maximum term of...